1 Thursday, 3rd July 1997

2 (2.30 pm)

3 Defence Submissions on Sentencing

4 (Accused enters court)

5 JUDGE McDONALD: Mr. Keegan, do you have something to

6 contribute to the Trial Chamber?

7 MR. KEEGAN: Yes, your Honour. With respect to the request

8 of the Trial Chamber of yesterday regarding the

9 constitution and the status of the death penalty in

10 Bosnia-Herzegovina, I can report to you that, in fact,

11 copies should be delivered soon of the current penal

12 code of The Republic of Bosnia-Herzegovina as well as

13 the constitution which was annexed to the Dayton

14 agreement, which is the current constitution for the

15 Republic of Bosnia-Herzegovina, and I can report that

16 the death penalty still is listed as a penalty in the

17 Penal Code of the Republic of Bosnia-Herzegovina and in

18 particular with respect to Articles 141 and 142,

19 Articles dealing with genocide and war crimes committed

20 against civilian populations. The constitution does not

21 address the issue directly, but I will tell you that

22 based on our research and some discussions it appears

23 that it will be a question for the constitutional court

24 in The Republic of Bosnia-Herzegovina whether the death

25 penalty will still be applicable in the future, much as

1 in the Federal Republic of Yugoslavia, because of the

2 terms of the new constitution, but as of this date the

3 penalty is still listed on the books, and, in fact, has

4 been awarded in or adjudicated in cases involving war

5 crimes after the adoption of the code in 1992.

6 For example, one case in particular, the case of

7 Borislov Herak, which was adjudicated on 3rd March 1993,

8 in which he received the death penalty, along with

9 Sretko Dajanovic, for war crimes.

10 JUDGE McDONALD: Will you provide us with a copy of that

11 document as well? I don't know what you have, a verdict

12 or --

13 MR. KEEGAN: We don't have a copy of the verdict, your

14 Honour. That wasn't available to us. I can attempt to

15 obtain a copy and provide that to the court.

16 JUDGE McDONALD: Okay. Thank you, Mr. Keegan. Mr. Vujin?

17 MR. VUJIN: Your Honour, I listened carefully to the

18 statement of Mr. Keegan and I wish to note that

19 Bosnia-Herzegovina does not have a new Penal Code. It

20 took over the old Penal Code of the former Socialist

21 Federal Republic of Yugoslavia, and it is evident that

22 the death penalty is listed there, but with the coming

23 into force of the new constitution of

24 Bosnia-Herzegovina, the intention is that the death

25 penalty can no longer exist as a criminal sanction, and

1 that is why that Penal Code is in contradiction with the

2 constitution and as such, according to constitutional

3 law which is still in force in The Republic of Bosnia

4 and Herzegovina, that law cannot be implemented, so that

5 the Defence is of the opinion that it is quite evident

6 that even the adjudicated sentences will not be

7 implemented and will have to be corrected eventually.

8 JUDGE McDONALD: Mr. Keegan?

9 MR. KEEGAN: Yes, your Honour. To clarify the issue

10 addressed, it stems from the provision in the

11 constitution promulgated with the Dayton accords that

12 says that the European Convention on Human Rights along

13 with its two Optional Protocols will be enforced, the

14 principles therein. I believe it is Optional Protocol 1

15 calls for the abolition of the death penalty. It allows

16 states, however, to file reservations following certain

17 procedural steps. The issue is The Republic of the

18 Bosnia-Herzegovina has not stated it has accepted that

19 European Convention and two Optional Protocols and

20 consequently has not taken the step to file the

21 reservation or not. The state could still file the

22 reservation that makes the death penalty applicable for

23 certain crimes. That step has not been taken which is

24 why it is a question at this point.

25 JUDGE McDONALD: With respect to the Penal Code. It may

1 have been a matter of semantics. Mr. Vujin says The

2 Republic of Bosnia-Herzegovina took over the old Penal

3 Code.

4 MR. KEEGAN: He is, in fact, correct. What the document you

5 see shows on 11th April 1992 The Republic of

6 Bosnia-Herzegovina adopted the Penal Code of the

7 Socialist Federal Republic of Yugoslavia as its Penal

8 Code.

9 JUDGE McDONALD: Okay, and it provides for the death

10 penalty.

11 MR. KEEGAN: Exactly, your Honour.

12 JUDGE McDONALD: Mr. Vujin, do you have anything else on

13 this point?

14 MR. VUJIN: No, your Honour, at this point.

15 JUDGE McDONALD: Mr. Keegan, you have provided the Defence

16 with a copy of what you provided to the Trial Chamber.

17 MR. KEEGAN: Your Honour, yes. Copies were being made as I

18 came down. They will be brought into the court and will

19 be provided as soon as possible.

20 JUDGE McDONALD: Mr. Vujin, yesterday we heard from the

21 Prosecution. We received its submission regarding the

22 appropriate sentence from its point of view and we are

23 now to hear from the Defence. Are you ready to proceed?

24 Are you ready to proceed?

25 MR. VUJIN: Yes, your Honour, the Defence is ready, but if

1 we can beg your indulgence, Mr. Livingston will start.

2 After that, Mr. Kostic and I will come last. So we have

3 shared amongst us certain segments of the statement so

4 that we promise not to be repetitious, but we would all

5 of us like to contribute.

6 JUDGE McDONALD: That is acceptable. How long do you

7 anticipate you will require jointly?

8 MR. VUJIN: Altogether perhaps two hours on the outside.

9 JUDGE McDONALD: Thank you. You may proceed.

10 Mr. Livingston?

11 MR. LIVINGSTON: May it please your Honours, I want to try

12 and be realistic about this case. Let me say at the

13 outset that I fully accept that this Defendant has been

14 convicted of very serious offences, and I also accept

15 that because of that this Trial Chamber has no option

16 but to impose a substantial period of imprisonment. Let

17 me also say right at the outset in respect of the

18 comments made by Mr. Niemann yesterday concerning the

19 Erdemovic case, that I fully accept that this is not a

20 case where I can ask the Trial Chamber to give credit

21 for a guilty plea; it's not a case where I can ask the

22 Trial Chamber to give credit for remorse; and it's not a

23 case, I think, where I can ask the Trial Chamber to give

24 any great credit for co-operation with the authorities,

25 though I was reminded yesterday afternoon that, in fact,

1 Mr. Tadic did give some assistance by way of providing

2 evidence. While he was in Germany, he made some

3 statements relating to a case tried while he was there

4 concerning a man called Gegic. It may be that others

5 know more about that matter than I do, but.

6 But in substance the matters that were in

7 Mr. Erdemovic's favour in his circumstances were not

8 available to this Defendant and I accept that.

9 I said a substantial period of imprisonment must

10 follow. The burning question, of course, is: how

11 long? The emotional reaction to that question is liable

12 to be something along the lines of: "The man's a

13 monster. He must be locked up for life", but, of

14 course, this Trial Chamber, consisting of professional

15 Judges, must resist the emotional response and simply

16 concern itself with matters of reason.

17 As far as the guidance that the Trial Chamber is

18 given by the statute and rules, of course that is

19 well-known to you and it is limited. It is common

20 ground that the starting point is Article 24, which, of

21 course, entitles the Trial Chamber to send this

22 Defendant to prison for life. In sub-Article 2 it

23 emphasises that the Trial Chamber should take into

24 account such factors as the gravity of the offence and

25 the individual circumstances of the convicted person.

1 I don't think, unless there's any serious argument to

2 the contrary, I don't think sub-Article 3 about the

3 return of property and proceeds is relevant to this

4 particular case.

5 The matter is elaborated on a little bit further,

6 of course, in the rules. Rule 101 asks you to look at

7 aggravating circumstances, mitigating circumstances, the

8 general practice regarding prison sentences in the

9 former Yugoslavia and also any penalty imposed by any

10 other court. Again, that last matter is not, I think,

11 of any relevance to this case. The only matter that is

12 perhaps of some relevance is that this appellant has so

13 far served some 3 years and 4 months in prison, if my

14 arithmetic is correct.

15 You are specifically, of course, asked to have

16 regard, and I do stress the words "have regard", because

17 I don't think it is in any way binding upon you, to have

18 regard to the practice involving prison sentences in the

19 former Yugoslavia and I think one ought to say

20 straightaway that the Trial Chamber in Erdemovic did not

21 find they had a lot of guidance about the actual

22 practice as opposed to what the laws dictate as far as

23 the former Yugoslavia is concerned, but it would

24 nonetheless appear that similar factors must be borne in

25 mind, such as the nature and circumstances of the

1 offences, injury to victims, deterrents, personal

2 circumstances of the Defendant and matters of that ilk.

3 I'm not going to --

4 JUDGE STEPHEN: Can I just ask you a question? What in

5 your submission is the relevant date at which one, as it

6 were, freezes the law in the former Yugoslavia and looks

7 at it? Is it the current law? Is it the law at the

8 time of the offences?

9 MR. LIVINGSTON: Well, what I would suggest is -- let me

10 say straightaway it may be my own obtuseness, but

11 I found myself somewhat confused at the end of Professor

12 Aleksic's evidence yesterday. I thought I knew a little

13 bit about the law of Yugoslavia from the materials

14 kindly supplied by Mr. Niemann, but what I would venture

15 to suggest is that one should be looking at the law as

16 it was, I think, in about 1992, because I think it's

17 only sensible to face up to the fact that this Tribunal

18 has the power to impose life imprisonment. If one does

19 not face up to that, the Yugoslav law at present is not

20 going to be of very much assistance. It seems the

21 Yugoslav law at present is in a state of flux. If one

22 accepts what Professor Aleksic says, the maximum at

23 present is arguably 15 years. What I would submit is --

24 JUDGE McDONALD: May I ask you a question just regarding

25 that?

1 MR. LIVINGSTON: Yes.

2 JUDGE McDONALD: I gather at the time, 1992, there was no

3 provision for life imprisonment. The maximum was the

4 death penalty and, of course, if the death penalty was

5 not imposed, and if I'm intruding into an argument that

6 is going to be presented by other counsel, tell me --

7 MR. LIVINGSTON: Well --

8 JUDGE McDONALD: My question is -- even if someone else is

9 going to respond to it, they can think about an answer

10 in advance -- would there be a nullem crimen sine lege

11 problem if the Tribunal imposes a life sentence, if the

12 life sentence was not provided for in any of the

13 republics of former Yugoslavia? In May 1992 there was

14 not a provision. It was either death or a maximum of 15

15 years or 20 years, if I understood the Professor.

16 Professors are wonderful, but sometimes it is a little

17 difficult. Under certain circumstances the 20 year

18 imprisonment could be imposed instead of a death penalty

19 but no provision for life. Is there a nullem crimen

20 problem, since the statute requires we have recourse to

21 the sentencing practices in the former Yugoslavia?

22 MR. LIVINGSTON: Let me say straightaway Mr. Vujin is far

23 better qualified to talk about Yugoslav law than I am.

24 All I was going to say about Yugoslav law were two

25 points. Without wishing to side step your Honour's

1 question, perhaps I can make those points. The first

2 one is that the 20 years seems to have been in some way

3 regarded as an alternative in some cases to the death

4 penalty. I think the Prosecutor's brief in Annex B,

5 which you may well have to hand, points out, I think,

6 quite usefully the way that the Yugoslav authorities

7 looked at that 20 year term. I am looking particularly

8 at page 3 of Annex B, which deals with the Penal Code in

9 the former Yugoslavia, if you have it. It is paragraph

10 9, towards the bottom of the page. In fact, it's the

11 last few lines, where it is observed that:

12 "Further, 20 years' imprisonment was the limit of

13 the alternative sanction, since in the SFRY it was

14 assumed that a sentence longer than 20 years in jail,

15 particularly a life sentence, was far more cruel than

16 death".

17 That's the first point I was going to make. The

18 second point is I think that one thing I did pick up

19 quite clearly from Professor Aleksic's evidence was that

20 both the death penalty and the 20 year alternative would

21 only be imposed in what were regarded as exceptional

22 cases, and there are two points I would make about the

23 word "exceptional". The first one is this, that in its

24 definition, in my submission, it contains the idea of

25 rarity, because if there were a lot of offences of that

1 particular type, then, in my submission, it would not be

2 exceptional. I think that's important in the context of

3 a case like this, because sadly because of the war and

4 the circumstances -- the breakdown of law and order in

5 Bosnia there were a lot of cases like this, and indeed

6 there are a lot of cases which are frankly, and I don't

7 think Mr. Niemann would argue with this, which are

8 considerably worse than this. One only has to look at

9 the other outstanding indictments to see that.

10 The circumstances had to be exceptional, and can

11 I deal with that in two ways? One, the exceptionality

12 of the offence itself, and, secondly, the exceptionality

13 of the offender. I have already made the point that

14 this is not, even on the Prosecution submission to you,

15 this is not the worst example to you of either a crime

16 against humanity or war crimes, which this Tribunal will

17 see.

18 The second point is this, that there is nothing,

19 in my submission, intrinsic to the term "crime against

20 humanity" and I am concentrating primarily on count 1,

21 because I think that is frankly the most serious offence

22 by far which you have to deal with, and that's not to

23 minimise the other matters, there is nothing intrinsic

24 in a crime against humanity which demands that you

25 impose a sentence of life imprisonment. That might seem

1 a trite point. I make it because, as the Trial Chamber

2 may be aware, in the country where I practice if

3 somebody is convicted of murder, the life sentence is

4 mandatory. There are no other option available to the

5 court at all unless there are other factors such as

6 mental illness. The life sentence is mandatory and then

7 it is for the Trial Judge these days to recommend what

8 he thinks would be an appropriate minimum term which the

9 Defendant should serve before he is eligible to apply

10 for parole. That's the way it works, but with a crime

11 against humanity it doesn't seem as though that's the

12 position, and there's ample authority for that which

13 your colleagues in the Erdemovic case amply set out.

14 Of the 22 Defendants who were tried in Nuremberg,

15 12 of them got the ultimate penalty of the death

16 penalty; the others didn't, with varying other sentences

17 being imposed. Equally, of course, in the Erdemovic

18 case again, where there was one count of a crime against

19 humanity, again no life imprisonment sentence was

20 imposed; indeed none was asked for by the Prosecution.

21 So there's nothing intrinsic in Count 1 which obliges

22 you, in my submission, to say that it's so exceptional

23 that life imprisonment should follow.

24 One has to look then at the nature of the

25 offences, the circumstances of the offences. I am not

1 going to say anything about the facts of this case.

2 That wouldn't be appropriate. You have already

3 expressed your findings on those in considerable depth,

4 and are far more familiar with them, frankly, than

5 I am. What I will say is this, that I think one has to

6 consider those acts in their context and there are two

7 aspects to that, I suggest. Firstly, that this is an

8 internationally condemned conflict in Bosnia, condemned

9 both by the UN and European Parliament and other

10 bodies. Secondly, it's a conflict which even in the

11 view of many hardened war correspondents was

12 particularly brutal and nasty. Unfortunately it wasn't

13 that short, but it was particularly brutal and nasty.

14 The second point about it is the matter or the

15 matters which you yourselves found in your judgement, and

16 I particularly have in mind the passages which start at

17 paragraph 87 of the judgement. It is there that you set

18 out your findings about how nationalism built up in

19 Serbia, then in Bosnia, and at paragraph 89 you mention

20 a man called Radoslav Brdanin, who was at that time

21 President of the crisis staff in Banja Luka, setting out

22 what he advocated about ethnic cleansing and creating

23 impossible conditions that would have the effect of

24 encouraging non-Serbs to leave, deportation and

25 banishment, liquidating those remaining. Then there is

1 a statement in the next paragraph 90 relating to Colonel

2 Vukalic, where you record that he characterised Croats

3 and Muslims as the enemies of Serbs and proclaimed that

4 Serbs in Bosnia were in danger and needed to be

5 protected. Then you point out in paragraph 91 about the

6 propaganda escalating in intensity, and so it goes on.

7 Perhaps the way you sum up that evidence which you

8 accepted is recorded in paragraph 69 in the quotation

9 from Edward Vulliamy, the British journalist. You

10 record there that the message from the government in

11 Belgrade was relentless.

12 JUDGE STEPHEN: Did you say 69?

13 MR. LIVINGSTON: 96. I beg your pardon. I think I maybe

14 did say 69. 96. You record there that you accept what

15 he said:

16 "The message from the government in Belgrade was

17 relentless, cogent and potent, a message of urgency, a

18 threat to your people, to your nation, a call to arms,

19 and yes, a sort of instruction to go to war for your

20 people. It pushed and pushed."

21 One of the points that was made in the Erdemovic

22 case, and I'm thinking particularly of paragraph 60, and

23 at paragraph 60 in the Erdemovic decision the Trial

24 Chamber there were analysing the purposes and functions

25 of national criminal systems in their sentencing process

1 and they record similar factors as one finds evidently

2 in Yugoslav law, the prevention of recidivism,

3 deterrents and retribution, the three elements, which

4 they say are attenuated in the contemporary version by

5 the principle that punishment shall be appropriate to

6 the crime's gravity and the moral guilt of the

7 perpetrator. It's that phrase, moral guilt, which

8 I think one must not lose sight of in this case, because

9 when you assess the seriousness of these crimes, in my

10 submission those who bear the greater responsibility for

11 creating the wave of nationalism which you found is the

12 background to these offences, those who bear the greater

13 responsibility for creating that wave, and those who

14 give orders for the commission of these offences must

15 bear the greater responsibility for them and should be

16 punished more severely. In moral terms, in my

17 submission, that must be the case. In terms of the

18 hierarchy in Republika Srpska, let alone, of course,

19 Serbia, Mr. Tadic, in my submission, comes very much at

20 the bottom of the pile. I'll leave Serbia on one side,

21 but, of course, there are the national leaders in

22 Bosnia. There are people like Mr. Brdanin. There's the

23 other gentleman who is referred to in the Prosecutor's

24 brief, Radoslav Vukic, described as being the President

25 of the SDS committee in Banja Luka. There are also all

1 the journalists. There is Simo Miskovic, a name with

2 which you will be familiar, the President of the SDS in

3 the Prijedor area; Milomir Stakic, who was, I , think

4 rather more local but equally had Presidential status,

5 and even in the Kozarac area at the time these offences

6 were committed, the President of the Serbian Assembly

7 was a man called Dragicevic. So at every level this

8 appellant comes at the bottom of the pile.

9 I accept, of course, your findings that he was to

10 some extent an SDS activist, and you have recorded that

11 you found that he helped organise the plebiscite, the

12 Serbian plebiscite in Kozarac area. I accept that, but

13 one shouldn't overestimate the part that he played in

14 the nationalistic movement which had built up. It was

15 others who were primarily responsible for stirring up

16 those background circumstances.

17 You have recorded that the media bear a

18 substantial responsibility for fermenting that

19 nationalism, and at the end of the day Mr. Tadic

20 comparatively, and I say carefully, again to use

21 prosecution terminology, in my submission can be seen as

22 a relatively little fish. Again I don't want to

23 belittle the acts which you have found him to have

24 played in that movement, but relatively speaking he is

25 not, in my submission, to any substantial degree

1 responsible for the whipping up of that atmosphere which

2 you found existed at the time.

3 What I suggest realistically happened here, and

4 I make this point, because a lot of people might say:

5 how do you reconcile the evidence of Ms. Metselaar and

6 the Tadic family with the findings that you have made

7 that Mr. Tadic committed such grave offences, and in my

8 submission the only way that one can reconcile those

9 findings with the other evidence which you have heard,

10 which I submit is credible evidence, is that this was a

11 man who, like watching, as I did the other night, the

12 waves rolling in over the beach in Scheveningen, he was

13 swept along by that wave of nationalism. I am not

14 trying in any way to say that he was compelled to do

15 what you found, but he was swept along in that wave of

16 nationalism, the sort of speeches which I have reminded

17 you of and which are recorded in the Prosecutor's

18 brief.

19 It's in that light that one can fairly conclude,

20 in my submission, that it is wholly wrong to

21 characterise this man as a monster, as some do. He's a

22 man who is plainly a beloved husband, a beloved father,

23 inspiring great loyalty not only in his family but in a

24 number of friends in Republika Srpska, but perhaps

25 Ms. Metselaar's evidence is really terribly significant,

1 because she is an independent person. You would expect,

2 perhaps, that the family might be somewhat biased in his

3 favour. Ms. Metselaar is not. She is a fellow Serb,

4 but otherwise she came with an open mind. You will

5 recall the way she summed him up as in her judgement, and

6 she has been in regular contact with him for two years,

7 as a caring and sensitive man. It may be that the

8 paintings which you have seen put before you perhaps

9 bear out that he is a caring and sensitive man. He's

10 not a man who takes lightly the kindness which he has

11 received from the diaspora Serb community, but again you

12 heard from Ms. Metselaar in her particular case he sends

13 her Christmas cards, birthday cards, New Year's cards,

14 the little things he can do in his position. He can't

15 do much to respond. In respect of every person who sent

16 him money or clothes, she told you he sends them letters

17 to thank them. This is not a man who is a monster.

18 This is a man who is capable of great good and who has

19 done good in his life. One must not ignore the fact --

20 I know Mr. Niemann says he is two-faced -- one must not

21 ignore the fact that he was also involved in Republika

22 Srpska in distributing humanitarian aid for the Red

23 Cross, again something to his credit.

24 He taught karate at a local club to young

25 students, young people in his area. These are not the

1 marks of a man who is the sort of monster, whom some

2 people would say is the picture presented by your

3 findings in this case.

4 What I submit is that one must look at his acts in

5 the context of this background material, what I have

6 described as the wave of nationalism, the whipping up of

7 anti-Croat and Muslim feeling, which you have found

8 existed as a background to these events and indeed to

9 the war in Bosnia as a whole.

10 JUDGE McDONALD: Mr. Livingston, before you move on to

11 another point, perhaps, I would like to ask you a

12 question about, I guess, the big fish and the little

13 fish. I don't know how to put it any better. The reason

14 I'm asking you this question is I know this is a

15 question that goes in my mind and so I want to share it

16 with you so perhaps you can respond and help me, because

17 you will not be with me when I'm thinking about it. You

18 are correct about the findings in the Opinion and

19 Judgement recognising that there were competing claims

20 for nationalism from both sides, Croatia and Serbia, and

21 I hope that point has been made clear in the judgement.

22 Those persons who are mentioned by name have not been

23 indicted even. Some of the people who you mention as

24 playing a larger role and perhaps bearing more

25 responsibility for stirring up these nationalistic

1 feelings, which go beyond nationalism it would seem to

2 me, but in any case some of those people have been

3 indicted, but those people have not been tried yet, and

4 so they are presumed innocent until such time as they

5 are found guilty beyond reasonable doubt. Sometimes we

6 hear, you know, people say: "What about the big fish?

7 You are not doing anything. Go get the big fish". The

8 implication is the big fish, whoever they may be, by

9 whose standards -- perhaps victims look at it

10 differently -- assuming they are, that's not the role of

11 a Judge. Personally I do not get involved in that

12 dialogue and suggest that somehow we are responsible for

13 getting the big fish. My job is to, as I view it, try

14 individuals who appear before me and make a

15 determination, based on the evidence, as to whether the

16 Prosecution has proved beyond reasonable doubt that they

17 are guilty and leave everything else to the extent that

18 I can as a human being who reads and watches TV, leave

19 those things out of my mind. So now how can I plug that

20 in and say: "Well, you know, there are people out there,

21 some of whom have been indicted, some of whom have not

22 been indicted, but whom I believe, notwithstanding the

23 fact that they have not been tried, I believe that they

24 are more guilty, so I want to save this most extreme

25 penalty for them". How do I handle that when I am

1 thinking about these subjects?

2 MR. LIVINGSTON: This Tribunal, this Trial Chamber, has --

3 let me say straightaway I am not being, I hope,

4 patronising to any -- it is a very difficult task in

5 deciding how to sentence a case like this. You have

6 very little guidance to go on because this is only the

7 second case where a Defendant has fallen to be

8 sentenced, but the reason I touched on that point was

9 because the Prosecution themselves in their brief --

10 it's on the second page. They start off one of their

11 main paragraphs by saying: "Tadic was not a little

12 fish". It is for that reason that I broached the

13 subject at all. It does appear to me that the only way

14 one can deal with that sort of allegation is to point

15 out that there are a lot of other people, whoever they

16 may be, and maybe it is not fair to mention names,

17 because those people might say: "I didn't do that. I'm

18 not guilty". I understand your point. The reality is

19 there are national leaders and there are minor party

20 activists at the other end and there are people in

21 between, whoever they are. They exist. The media do

22 exist. Public pronouncements have been made. I think

23 whatever one says about the people I named, as

24 I understand the Prosecution case, they are simply

25 quoting from what is in the public forum, and what I do

1 say to you is you cannot ignore words that are spoken by

2 whoever in the public forum, forum, in the media, on

3 major public platforms, and one cannot ignore the effect

4 that those statements and what is coming through on the

5 television creates. There is another passage in your

6 judgement which I cannot immediately identify, where you

7 indicate there came a time when in the Republika Srpska

8 they could only receive television from Serbia. You

9 have made findings about the role played by Serbia in

10 this atmosphere. One cannot ignore the effect on public

11 opinion, the way people think, which the power of the

12 media helps to create. All I am trying to say is

13 Mr. Tadic did very little to create that atmosphere. He

14 lived in a small town in Bosnia and he was not a person

15 who was making major public speeches on the radio or the

16 television. He was not primarily somebody who was

17 responsible for creating this background, and that is

18 the reason why I would invite you to the conclusion that

19 it is fair to regard him as a little fish, even though,

20 of course, other bigger fishes may or may not have been

21 indicted and certainly have not been tried.

22 You are in a situation where you have to sentence

23 this man now, but one must, in my submission, look at

24 his moral guilt, and that means looking at his place in

25 the hierarchy, where his level truly is. I don't think

1 you can simply ignore the fact that there are many other

2 people in the background who bear in my submission a

3 bigger responsibility than he does for creating the

4 atmosphere in Bosnia in which the war was fought.

5 JUDGE McDONALD: I was thinking in my system it might fit

6 something like an unindicted co-conspirator, something

7 like that. The person out there pulling the strings,

8 not indicted doing some very evil things. You left out

9 the quote when reference was made to the second

10 gentleman that he said that the children of mixed

11 marriages were only good for making soap. So there is

12 some pretty dastardly remarks there in that section.

13 MR. LIVINGSTON: They are dastardly.

14 JUDGE McDONALD: Made by leaders.

15 MR. LIVINGSTON: Precisely. Your Honour and your

16 colleagues have made those findings, but one must

17 consider the impact of those sort of statements on what

18 I suggest is the ordinary man in Bosnia, such as

19 Mr. Tadic, and one cannot, I would submit, just ignore

20 the power of the media in that context, and I would

21 invite you to look very carefully in the way I have

22 suggested at his true moral guilt, and the true

23 responsibility which it is right to let him bear for

24 what he did in the light of the atmosphere that had been

25 found created.

1 Perhaps I can just move on to finish what I was

2 saying, if I may, about Mr. Tadic being a man who has

3 good in him. You are going to hear, of course, tomorrow

4 from Dr Nedopil, but I think perhaps I can sum up his

5 report, I hope not unfairly, in about one sentence,

6 which is that he saw nothing in Mr. Tadic's character, as

7 he saw it, which would indicate that he was a man who

8 was inclined by nature to commit the sort of acts which

9 have been found proved in this case. So in so far as

10 the relevance of my being able to say that they are out

11 of character is concerned and the likelihood of anything

12 like this ever happening again, then his report is in

13 line with Ms. Metselaar that these offences do not

14 square with his character and his nature as the

15 psychiatrist observed it to be.

16 Your Honour, I have dealt, I hope, with the issue

17 about a crime of humanity not being intrinsically one

18 where one has to impose life imprisonment. I have

19 dealt, I hope, with the circumstances in which the

20 offences were committed. I have started on this

21 question of Mr. Tadic's own character, and I would ask

22 you to bear that in mind.

23 I would also ask you to bear in mind the effect on

24 his family, and I think particularly on the young girl

25 Valentina. It doesn't need much imagination, I would

1 have thought, to reach the conclusion that what has

2 happened to her father must be like dropping an atom

3 bomb in her life, and whatever courage, whatever

4 courageous appearance she can put on that, it must be

5 devastating. I think to any parent being able to

6 observe, as Mr. Tadic does, that devastation in a child,

7 and also, of course, in his wife and his nearest and

8 dearest is very painful, and I think it's only right

9 that you should take that into account as well.

10 Can I also deal with another aspect of this case,

11 and this primarily goes to the documents which I'm

12 afraid I was responsible for being handed in yesterday.

13 I think it's known as Exhibit 120. They are documents

14 which look like this. What I would ask you to bear in

15 mind, because I do think it's important, is that

16 whatever sentence you impose on Mr. Tadic, that's not

17 going to be the end of the punishment which he faces,

18 because my submission to you is that his life is ruined

19 for the rest of his days, and I say that for this

20 reason, that you have had evidence put before you --

21 Mr. Vujin put it in the other day -- that he has been

22 summonsed or there is an indictment or a charge,

23 whatever the proper term is in the Republika Srpska, for

24 him for avoidance of military service. It is to that

25 point that these documents I would now ask you to look

1 at go. I know it is perhaps a little bit illogical to

2 ask you to take the documents out of order, but the

3 second document in that bundle is a report dated

4 December 1996 by UNHCR. I have extracted merely one

5 page from it. I don't think for these purposes I have

6 taken it out of context. The passages, I think, you

7 have to pay attention to are those I have marked in the

8 margin. I hope you can see the markings. It refers to

9 the fact that there is -- well, I think it's well-known

10 that the Dayton Agreement actually obliged all the

11 participants in the conflicts in Yugoslavia to pass

12 amnesties in respect of people who avoided military

13 service. They have all done so except Republika

14 Srpska. That page from the UNHCR report bears that

15 out. The first passage I have marked said:

16 "It is widely agreed that the national amnesty law

17 for the whole of Bosnia does not and will not apply in

18 Republika Srpska".

19 Then the second passage:

20 "The Republika Srpska amnesty law does not mention

21 the criminal offence of calling for resistance and

22 specifically excludes from the amnesty those who have

23 committed the criminal acts of not responding to the

24 call-up or avoiding military service and wilful escape

25 or desertion from the army".

1 The following document, Article 2 is the article

2 which sets that out specifically. The translation comes

3 first and the original for anybody who can read the

4 language follows.

5 The document at the back again is another document

6 which emanates from UNHCR, dated 31st August 1994. You

7 can see what the punishments are for draft evasion on --

8 it's the second page of the document, of that particular

9 letter, under the heading "What is the Punishment the

10 Bosnia Government can Impose on Draft

11 Evaders/Deserters?"

12 The answer is:

13 "In time of war persons convicted of

14 refusing/avoiding military obligation are liable to

15 imprisonment for one to ten years if they are still in

16 Bosnia, or imprisonment for five to fifteen years or

17 death if they have left the country".

18 Then on the final page the passage again I have

19 marked says this:

20 "They also advise", that is UNHCR's office in

21 Sarajevo, "that many of the human rights issues in

22 Bosnia resolve around mobilisation, and there is no

23 doubt that persons who try to avoid military service are

24 seen as traitors and face problems ranging from

25 harassment to persecution to possible attempts on their

1 life".

2 I read that last passage because even if an

3 amnesty law is passed, there remains a significant

4 remaining problem, which is again dealt with perhaps

5 best in the first letter in that bundle, that by Florin

6 Gomel from the European Bureau for Conscientious

7 Objection. I pause, because I don't know whether His

8 Honour Judge Stephen wished to ask a question.

9 JUDGE STEPHEN: I will in a moment, but you carry on.

10 MR. LIVINGSTON: Again I have marked for you, I hope, the

11 relevant passages in that letter. What it's saying is

12 -- although I, of course, accept that it places

13 particular emphasis on the difficulties which those from

14 mixed families, mixed ethnic origins come, it says:

15 "Despite the apparent removal of the risk of

16 prosecution", that's particularly in Serbia and in the

17 federation part of Bosnia, "I would agree with the

18 comment made by the European Civic Forum in the article

19 which you kindly sent me that such people, especially

20 those from mixed families, are likely to be the victims

21 of extra-legal treatment, which would amount to

22 persecution within the 1951 Geneva Convention on

23 Refugees. This persecution would be likely to take the

24 form of social discrimination, i.e. denial of access to

25 available housing, employment opportunities,

1 administrative harassment and rejection by their

2 communities".

3 It also points out that paramilitary influence is

4 still a powerful influence particularly in Bosnia, and

5 physical attacks by ultra-nationalistic groups are sadly

6 still a possibility. That was in September of last

7 year.

8 So the point I am making is, however long this man

9 has to serve in prison he is going to come out at some

10 stage. He's going to have difficulties, in my

11 submission, in his homeland of Republika Srpska. That's

12 what those documents, in my submission, would indicate.

13 In my submission, he's going to have very great

14 difficulty if he attempts to go elsewhere. Imagine, and

15 this is not intended as a frivolous comment, imagine him

16 going to a foreign country and trying to get work, even

17 assuming he can speak their language. What does he put

18 on his curriculum vitae? Because of his position as the

19 first person who has been tried before this Tribunal, he

20 is going to find it quite impossible to build a life

21 anywhere else outside Bosnia. His position, in a

22 nutshell, in my submission is almost an impossible one

23 outside Republika Srpska or inside Republika Srpska.

24 That is why I say that you shouldn't assume that his

25 punishment is going to end with whatever this court

1 imposes. It is something which will continue for the

2 rest of his days.

3 I know that it could be said that he has brought

4 it on himself, granted the findings of facts that you

5 have made, but the reality is that he is going to pay

6 the penalty for it not just in a prison cell, but

7 thereafter. Even while he is in prison, of course, his

8 circumstances are likely to be more difficult than

9 perhaps the average prisoner's. You will recall, I'm

10 sure, what was said in the Erdemovic case. It's at page

11 36. It's paragraph 75 where the Trial Chamber made this

12 observation:

13 "In addition, because persons found guilty will be

14 obliged to serve their sentences in institutions which

15 are often far from their places of origin, the Trial

16 Chamber takes note of the inevitable isolation into

17 which they will have been placed. Moreover, cultural

18 and linguistic differences will distinguish them from

19 the other detainees".

20 So wherever he goes, and I take note of what was

21 said yesterday about Italy and Finland being currently

22 the only two countries which have made the appropriate

23 agreements in this regard, wherever he goes, he is going

24 to suffer any term of imprisonment in a state of some

25 isolation.

1 It may be worse, and you may say this is fanciful,

2 but I think it isn't, because I think it's known that

3 Mr. Tadic has already been the subject of one assault

4 while he has been in custody, it may be in a foreign

5 jail that he will find it very difficult in prison. One

6 has seen the attitude on one occasion, when he has been

7 in custody here and, of course, if that happens, it may

8 be that he will have to serve his sentence in solitary

9 confinement. That is to some extent speculation, but

10 I do ask you to bear in mind that there has already been

11 one incident, and that it may be an indication sadly of

12 things to come.

13 My main point is the point made in the Erdemovic

14 case that inevitably, because he serves a sentence

15 abroad, in a country where he won't speak the language,

16 inevitably isolation is an important factor, and it's

17 also a factor that his family will find it difficult to

18 visit him if he's in prison in a foreign country.

19 Can I deal briefly with the subject of concurrent

20 and consecutive sentences? I rather suspect, although

21 it's a very difficult problem in many cases, I rather

22 suspect that it may not be a problem that troubles this

23 court greatly, but the system in English law is one

24 which I hope may commend itself to this Trial Chamber.

25 It is very simply this. I will just find the

1 appropriate passage. I beg your pardon. The system

2 basically is this, that one should look first of all and

3 primarily at the totality of the sentences which one is

4 imposing; in other words, to see whether the aggregate

5 sentence is just and appropriate, taking the offences as

6 a whole, the totality principle, but one of the

7 circumstances which is specified and I am reading from

8 the leading practitioner's textbook on English criminal

9 law, Archbold’s Criminal Pleading Evidence and Practice.

10 It is the 1997 edition. This is at paragraph 5-150.

11 One of the circumstances which is set out there for

12 imposing a concurrent sentence is where an offender who

13 is sentenced to a long-term of imprisonment for a grave

14 crime is also liable to be sentenced to shorter terms

15 for some other matter or matters.

16 Without wishing in any way to belittle the other

17 offences other than Count 1, in my submission it may

18 well be that the court would have in mind that the

19 principal sentence in this case would be for Count 1 in

20 which case I would invite you to follow that principle,

21 that the appropriate course is then to make the other

22 sentences run concurrently.

23 I would also say -- I think Mr. Kostic will also

24 say something more about this -- I would also say that

25 you should have regard to the fact that these offences,

1 while not obviously all committed on one occasion or on

2 one day, do in a sense form a course of conduct over a

3 period of time, and they are all committed in one

4 comparatively small area. It's not as though, for

5 example, Mr. Tadic went off to Belgrade and committed

6 some offences there. These are offences which are all

7 confined to Opstina Prijedor and are all within a few

8 months. If you take the view that they are properly to

9 be regarded as a course of conduct, then that is

10 something which would go in favour of imposing

11 concurrent sentences for the other offences apart from

12 that in Count 1.

13 Your Honour, finally, can I deal with the moral

14 message? I don't want to sound pompous when I say this

15 -- the moral message which I think this Tribunal has,

16 certainly something which was dealt with in Erdemovic.

17 I would accept that the message which has to go out to

18 Yugoslavia and the world is that those who commit crimes

19 against humanity and war crimes have to expect to be

20 dealt with severely. That's the first important

21 message. The second message is a different one, and

22 perhaps I can be excused, and I hope again I am not

23 going to cause problems for the interpreters, but

24 I think it's a message which is expressed by Shakespeare

25 more eloquently than I can ever express it. I hope the

1 Tribunal will bear with me if I simply quote two or

2 three lines from the famous speech of Portia's in the

3 Merchant of Venice towards the end of Act IV. You may

4 recall at that point that Portia has said to Shylock

5 that: "The Jew must be merciful". His answer is: "Upon

6 what compulsion must I be merciful?" The answer which

7 she gives towards the end of the famous speech is this:

8 "Therefore, Jew," she says, "though justice be thy

9 plea, consider this: that in the course of justice none

10 of us should see salvation. We do pray for mercy and

11 that same prayer doth teach us all to render the deeds

12 of mercy".

13 I do submit to you that that's a message which it

14 is equally important that this Tribunal sends out to

15 Yugoslavia and to the world. Justice is a severe

16 concept which catches up with all of us, again to quote

17 Portia's speech: "... unless it is seasoned with mercy".

18 I particularly make this point, because there are

19 some, and I'm sure you are well aware of this, who see

20 this Tribunal's function as an avenging angel for

21 whichever ethnic group is the victim in any particular

22 case. That, of course, as you readily accept, is not

23 the function of this Tribunal, to be seen as an avenging

24 angel. It wasn't just Portia or Shakespeare through her

25 who expressed this point. It was also a matter which

1 the Tribunal in Erdemovic -- the Trial Chamber in

2 Erdemovic dealt with at page 21 of the judgement,

3 paragraph 46. They quoted there from the decision of

4 the United States Military Tribunal when it delivered

5 its sentence in the famous hostage case. It's the top

6 of page 21. The relevant part of the quotation is this:

7 "The degree of mitigation depends upon many

8 factors, including the nature of the crime, the age and

9 experience of the person to whom it applies, the motives

10 for the criminal act, the circumstances under which the

11 crime was committed, and the provocation, if any, that

12 contributed to its commission".

13 Then they put in italics these words:

14 "It must be observed, however, that mitigation of

15 punishment does not in any sense of the word reduce the

16 degree of the crime. It is more a matter of grace than

17 of defence".

18 In my submission again that is harking back to

19 what Shakespeare wrote so many centuries ago: justice

20 is not justice unless there is an element of grace and

21 of mercy which is shown. I invite you in closing my

22 submissions to you to send that message out not to

23 encourage the avenging angel concept, that the message

24 that justice involves and should be tempered by mercy

25 and grace is an important one, and is something that

1 should be regarded widely as a principle for those who

2 commit crimes such as Mr. Tadic has been convicted of and

3 others who may be in the future. I invite you to show

4 him mercy for the reasons which I have given, to bear in

5 mind his personal circumstances, to bear in mind that

6 this is not the worst offence of its kind, and I would

7 invite you not to go down the route of imposing life

8 imprisonment. I would invite you to pose a determinate

9 sentence on this still relatively young man -- I think

10 he's one year older than me.

11 Of course, as I said at the outset, it must be a

12 substantial one, but it should be one in accordance with

13 the principles of United States law, which are set out

14 in the Prosecutor's brief: sufficient but not greater

15 than necessary. I would ask you to remember the way the

16 Yugoslavs themselves regard that 20 year term, only to

17 be imposed in exceptional cases, exceptional cases,

18 because they regard more than 20 years as being worse

19 than the death penalty. I would invite you to take all

20 the mitigating factors into account that I've mentioned

21 to reduce that sentence as much as you feel able to do.

22 Your Honour, unless I can assist you further,

23 those are my submissions.

24 JUDGE McDONALD: Thank you very much, Mr. Livingston.

25 Mr. Vujin, will you proceed next?

1 MR. VUJIN: Yes, your Honour. Mr. Kostic will proceed next.

2 JUDGE McDONALD: Mr. Kostic?

3 MR. KOSTIC: I am trying to get set up here. May it please

4 your Honours, Mr. Niemann, Mr. Keegan, colleagues of the

5 defence, it's been pretty rare in my career to come in

6 and argue a case at the very tail end; in other words,

7 the sentencing portion, when so much has occurred before

8 I step up. I can make some comparisons, something to

9 the effect of coming in and putting in one brick when a

10 house is built and then stepping back and reviewing my

11 work and reviewing the work of everybody else. You have

12 built a house here. You have built a trial, you have

13 built a procedure, you have built a process, a legal

14 process.

15 I say that because I want you to understand my

16 comments and perhaps I'm also doing some preventative

17 work, saying there may be some facts that the court

18 knows much better than this attorney, which is true, in

19 regard to this case, and of course my colleagues across

20 the way on the Prosecution.

21 But nevertheless Mr. Tadic, who is our client at

22 the present time, was arrested on February 12th, 1994 in

23 Munich, Germany. As you know, he had fled from his home

24 town, from his area where he grew up and sought refuge.

25 In the meanwhile unfortunately the war in Bosnia raged.

1 The International Tribunal at some point was set up.

2 May of 1993 is my recollection. He was arrested

3 pursuant to some of the activities concerning

4 investigations. It was the first time, to my knowledge,

5 that Germany used a concept of universal jurisdiction

6 for events that did not occur in Germany when he was

7 arrested and when he was going to be tried in Germany.

8 Then unfortunately for Mr. Tadic, he began recording

9 firsts and has continued to record firsts in regard to

10 his dealings with the legal system. He was the first

11 person who was brought to The Hague in front of this

12 Tribunal. He appeared here on April 26th, 1995 at an

13 arraignment or initial hearing. He was the first person

14 who became the guest at the UN detention centre. He was

15 the first person who was litigating motions in front of

16 your Tribunal and then even taking interlocutory appeals

17 to the Appellate Chamber, the first person to be tried

18 in a full trial and first person to be sentenced after a

19 full trial. As you know, of course, a notice of appeal

20 was filed in regard to the judgement of the court and, of

21 course, that will be the first appeal.

22 I don't think that Dusko Tadic would have ever

23 wanted to record all of these firsts, but unfortunately

24 he did. We have to deal with it. One of the things

25 that I wanted to talk about just a little bit and, you

1 know, when you go second, as I do, you have the benefit

2 of Mr. Livingston breaking some of the ice hopefully,

3 and also to hear what he has been asked and perhaps to

4 even predict what some of the Judges may be thinking

5 about. One of the thoughts that came across during his

6 discourse was based on a question by Judge McDonald and

7 talked about how Mr. Tadic fits into this system and then

8 I think a greater part of the question, and that is this

9 is the International Criminal Tribunal for the Former

10 Yugoslavia. What message do we send out? How do we

11 judge each individual appearing in front of us? Do we

12 only judge that individual? Is that individual judged

13 in a vacuum, so to speak? By the way I don't think --

14 I am not paraphrasing the court correctly. That may not

15 be the right terminology. Do we only look at his

16 position in front of the court? Do we only look at the

17 charge? Do we only look at the indictment? Do we only

18 look at his role and function in what occurred in Bosnia

19 in 1992 and 1993?, and so on.

20 In the Erdemovic case some place in paragraph 58,

21 and this comes from a report of the Tribunal itself,

22 there is a discussion which essentially goes into the

23 area and I cite here that:

24 "The Tribunal is interested or concerned about the

25 impunity of the guilt and whether that would only fuel

1 the desire for vengeance in the former Yugoslavia,

2 jeopardising the return to the rule of law,

3 reconciliation and the restoration of true peace".

4 So that seems to set some thoughts about the

5 message that goes out from the Tribunal. I can tell you

6 that I, like other people who have an interest in

7 Yugoslavia, who are international lawyers, who are

8 statesmen, who are Diplomats, have paid attention to how

9 this Tribunal came into being. I believe that all of

10 you in the Trial Chamber probably know that better than

11 I do, but I have certain quotes in my mind as I recall

12 the media, as I recall the jurists talking about this

13 problem, the statesmen, politicians, who talked about

14 whether or not there ought to be an international

15 criminal tribunal for Yugoslavia, and once one was

16 organised, what it would mean. I'm going to give you

17 some random quotations. For example, one Professor

18 thought that the Tribunal is a fig leaf for the

19 international community's inaction during the war in

20 Bosnia. Somebody said that the Tribunal is the single

21 most important factor in whether the delicate truths in

22 Bosnia hammered out in Dayton will hold. Other people

23 thought the issue is whether or not people will be held

24 to the standards of the 1949 Geneva Convention and the

25 1948 Genocide Convention. Somebody else talked about

1 that the creation of the Tribunal is a dramatic

2 development in the area of human rights because it

3 called for the accountability of leaders of oppressive

4 regimes.

5 As a corollary to that quote: "You can't move

6 forward and try to rebuild a society", talking about

7 Bosnia and Herzegovina, "when you have the ringleaders

8 of an oppressive regime in charge".

9 Other quotes: the Tribunal being watched by

10 proponents and opponents of the permanent court, in

11 other words the thought that this Tribunal will be a

12 model for a permanent court. I will not bore you with

13 any more, because I suspect you have all a number of

14 these types of quotations and citations that you have

15 heard about. I just want to go -- I do want to give you

16 one more quote and then see how Dusko Tadic fits into

17 that. When the Tribunal was organised and Mr. Tadic,

18 I think, had not been arrested at that point yet, and

19 there were certain discussions about what the Tribunal

20 would do and what it can do and what are the prospects

21 for the Tribunal, one of the Judges was asked: "What

22 happened when you came to the Tribunal?" That Judge

23 said: "Initially there were 11 Judges, 3 secretaries and

24 nothing. We had no jurisprudence we could rely upon":

25 this citation is from Judge McDonald. I am not sure if

1 I am quoting the Judge correctly.

2 JUDGE McDONALD: I don't read my own press.

3 MR. KOSTIC: Then you trust me that I am correct with that.

4 One final quote in that regard. Now we are getting

5 closer to the trial here of Mr. Tadic and somebody

6 I think from the Prosecution staff said:

7 "If the trial is conducted fairly and a decision

8 is acceptable as a fair one, it will be a large boost

9 for the formation of a permanent court".

10 I don't think that person is interested in a

11 permanent court. I trust that he was more interested in

12 this trial being a fair one and being perceived as a

13 fair one.

14 So in a way Mr. Tadic, when he came along, this was

15 the atmosphere. When I listened again, and I'm not sure

16 if there was a colloquy between Judge Stephen and

17 Mr. Livingston about this fish business, whether he was

18 a little fish, big fish or whatever, I'm reminded of

19 something. Again I am going to try to quote Judge

20 Stephen at this time and then maybe I should quit

21 quoting Judges. After the judgement in this case

22 I watched an interview with Judge Stephen on one of the

23 programmes and I think the Judge was asked that specific

24 question: "Don't you think that Dusko Tadic is a little

25 fish?" I think the Judge and for the fear of misquoting

1 him I think this is what he said. He said: "I don't

2 know about that, but he was the only fish", in other

3 words, he was the only prisoner, he was the only one who

4 was going to be tried.

5 So in that regard Mr. Tadic has served a function

6 here. It's my understanding from everything that I have

7 read about the case and everything that I have seen on

8 monitors and everything that I have watched myself -- as

9 you know, this case received some publicity and some

10 notice -- Mr. Tadic behaved well, courteously and

11 assisted his defence. I'm not here at all to comment on

12 how the trial was run. I'm not here to give an opinion

13 whether it was a fair trial, whether he was dependent on

14 the best acts of anybody, whether the government of the

15 Republika Srpska co-operated or not. Those are things

16 you know better than I do. I do think Mr. Tadic, the way

17 he handled himself and the way he reacted to this court,

18 did everything he could to be a gentleman and to handle

19 himself properly.

20 I also wanted to find a few things that the

21 Prosecution and I could agree upon, because that's

22 always very nice if we can agree on some things, because

23 you then perhaps will take some of those agreements as a

24 fact. I don't think that the Prosecution has any

25 objection that under Rule 101E the credit for time that

1 Mr. Tadic has been incarcerated be credited to him.

2 I believe the actual figure at this point is 41 plus

3 months. As far as Rule 101(C) --

4 JUDGE McDONALD: Excuse me. Are you including time spent

5 in Germany? I think in Mr. Livingston's calculation

6 I guess he was.

7 MR. KOSTIC: Yes, he was. From February 12th of 1994 until

8 let's say today's date. That's as close as I can come.

9 I'm sure that that will change depending on what happens

10 from now on in terms of the 14th being the time for the

11 actual pronouncement of the sentence and then if the

12 appeal continues, of course, we don't know, but I don't

13 think the Prosecution has any -- I have not heard any

14 objection to that particular credit.

15 Rule 101(C) talks about consecutive or concurrent

16 sentences. I'm sure that Mr. Niemann will jump up if

17 I misquote him or say something that he didn't mean

18 yesterday. I understood him to say that this is an

19 appropriate case for concurrent sentences. I heartily

20 agree. Mr. Livingston had touched upon the fact that

21 the concept is that Count 1 encompasses and subsumes all

22 of the allegations -- initially all the allegations and,

23 of course, now all of the counts that the court found

24 Mr. Tadic to have committed, in other words found him

25 guilty, that all of those events or incidents occurred

1 between May 23rd, 1992 to December 31st, 1992, as is

2 stated in Count 1 of the indictment. That is my

3 understanding. In other words, that is the main count.

4 I know that only Judge McDonald shares with me the

5 American experience, although the other Judges may have

6 read about it -- I don't know --

7 JUDGE McDONALD: My experience may be different than yours.

8 MR. KOSTIC: Let us see if that is true. It sounds to me,

9 Judge --

10 JUDGE McDONALD: You mean legally subsumes or factually

11 subsumes?

12 MR. KOSTIC: Factually, but I would compare it to a federal

13 law in the United States which takes into consideration

14 all of the planning, all of the scheme, all of the

15 design, all of the facade of a common scope or a plan.

16 Then you have additional counts which we call

17 substantive counts, which are pieces or parcels of that

18 scheme. That is the analogy that I would like to give

19 to the court, because again I think it's the same course

20 of conduct, and I think it's charged that way in the

21 indictment.

22 Now, not everything in Count 2 -- maybe overt

23 acts -- were actually proved up and you have very nicely

24 set out in your judgement which you thought was proved up

25 and which was not. We know what it is. Then we have

1 the remaining ten counts, which talk about activity and

2 then, of course, convictions for specific acts which are

3 mentioned generally under Count 1. That is the reason

4 why I feel that a concurrent sentence is what ought to

5 occur here. I think it looks like my colleague from

6 England agrees at least in regard to English law with

7 the Federal Law in the United States, and again I think

8 Mr. Niemann agrees with that. He hasn't jumped up yet,

9 so I'm feeling pretty good about it. So I think that's

10 the situation on the concurrent and consecutive

11 sentences.

12 I would like to talk a little bit about the

13 Erdemovic case and some of the language in there,

14 because I have some thoughts and I have looked at the

15 clock. What would you like, your Honour, in that

16 regard?

17 JUDGE McDONALD: Perhaps we might take a recess now, but as

18 you review your notes, recall what Mr. Livingston --

19 I apologise, Mr. Livingston -- what Mr. Livingston said

20 about Erdemovic, so keep that in mind rather than

21 repeating what he said. We expect that we will finish

22 the submissions of the Defence today. We plan to

23 proceed until 5.30. Perhaps, if necessary, if we will

24 need to go a little bit later. In any case, we would

25 like to finish the Defence submissions today.

1 MR. KOSTIC: Judge, I have looked and listened and I will try

2 very hard not to be redundant. I appreciate what you

3 are telling me.

4 JUDGE STEPHEN: Can I leave with this question for you; do

5 I understand what you are saying on concurrent that the

6 Count 1 sentence, because it subsumes all the incidents

7 in the subsequent counts on which Mr. Tadic was found

8 guilty, the rest should all be made concurrent with

9 Count 1.

10 MR. KOSTIC: Yes, sir.

11 JUDGE STEPHEN: If there are a number, one does not add

12 them up and find they come to perhaps a longer term, a

13 greater term than the term imposed under Count 1. One

14 simply has them there on the record, but it would be the

15 Count 1 sentence that's the effective one.

16 MR. KOSTIC: Yes. I would suggest, and I'm not suggesting

17 this number, by the way, and please do not hold me to

18 number -- I am doing this purely hypothetically.

19 JUDGE STEPHEN: Let us make it X.

20 MR. KOSTIC: If it is number X on Count 1 and Y and Z on the

21 other counts, the sentences begin running at the same

22 time, so the shorter sentences will expire and if

23 sentence X on Count 1 is the longest, that will be the

24 longest term.

25 JUDGE STEPHEN: I follow. Thank you.

1 MR. KOSTIC: I don't want to go back to Professor Aleksic's

2 business about "aspiration".

3 JUDGE McDONALD: No. You have the appropriate legislation.

4 MR. KEEGAN: If your Honour, if you would like to take them

5 with you on the break.

6 JUDGE McDONALD: Why don't you pass it up? Prosecution

7 Exhibit 374 will then be admitted. It is the criminal

8 law of the Republic of Bosnia and Herzegovina,

9 constitution of Bosnia and Herzegovina. No objection,

10 I gather, Mr. Vujin; is that correct?

11 MR. VUJIN: No.

12 JUDGE McDONALD: Okay. Very good. We will stand in recess

13 for 20 minutes. Then when we return, we will continue

14 with Mr. Kostic.

15 (4.05 pm)

16 (Short break)

17 (4.25 pm)

18 JUDGE McDONALD: Mr. Kostic?

19 MR. KOSTIC: Thank you, ma'am. Before I begin the argument,

20 I wanted to inform you, because it was in the Erdemovic

21 decision that I was looking at at the break, I think it

22 is everybody's understanding that the countries of

23 Finland and Italy have accepted agreements. I was also

24 in paragraph 1 informed that a number of other countries

25 apparently have applied -- I guess that would be the

1 right word -- it is Denmark, Germany, Iran, Pakistan,

2 the Netherlands, Sweden, Croatia and

3 Bosnia-Herzegovina. So that's a complete list. I'm

4 sure we will be notified as to which of the applications

5 are accepted.

6 JUDGE McDONALD: Some have agreed also to accept but with

7 reservations that really affect the accomplishment of

8 the incarceration.

9 MR. KOSTIC: I only brought that up, your Honour, because

10 there was some discussion about that by Mr. Livingston

11 as to the situation concerning conditions, paroles,

12 remissions and things of that nature, although it's my

13 belief that Rule 104 seems to see that the Tribunal

14 continues and shall have jurisdiction no matter what

15 occurs in regard to any of the pardon, clemency or other

16 issues.

17 In listening to some of the comments of the

18 Prosecutor in regard to Erdemovic I want to just bring a

19 few facts out for your consideration. I want to be

20 brief with that, because I think in some ways there is

21 an invitation for you to draw some comparisons. To be

22 very, very candid with the court, I'm struggling myself,

23 as I read that decision and am involved in this case, to

24 reconcile these decisions, to look at the legal theories

25 behind the sentencing of the other gentleman by the

1 other Trial Chamber.

2 The concepts that Mr. Niemann talks about, the

3 remorse concept, the mitigation factors, co-operation

4 with the Prosecution, are not concepts that are --

5 I mean, they are common to all legal systems, and I'm

6 having a difficult time reconciling, because I read the

7 judgement in this case and other things, and then I have

8 read, for example, in the Erdemovic case, that what we

9 are dealing with pursuant to paragraph 78 and in that

10 area to 85 that that gentleman was apparently, according

11 to his own version of the -- had killed 70 people in

12 about a five hour span with an automatic rifle. There

13 is an analysis subsequently that the 70 could be 10 to

14 100, but 70 is the Defendant's or the accused's own

15 statement. I don't know and I didn't know the mental

16 capacity of the gentleman, because there's a discussion

17 in the decision about that, but to me it is difficult to

18 compare the situations and look at the recommendation of

19 the Prosecution, albeit considering the mitigation

20 issue, the remorse issue and the co-operation issue.

21 Mr. Tadic had and has and did take advantage of his

22 right to have a trial. We know the result. Roughly

23 one-third of the counts were accepted by the Tribunal as

24 guilty and the others were not guilty. I think that

25 when we consider his right to a trial and the fact that

1 he has exercised that right, I would ask the court to

2 temper the fact that he has exercised that right and not

3 punish him for doing that fact by itself. Certainly the

4 Chamber has a right to look at all of the other facts

5 about Mr. Tadic, the testimony, his background, things

6 that Mr. Vujin is going to talk about, lack of a prior

7 criminal record, his character, his individual

8 circumstances, but I think I'm asking the court not to

9 punish him for that one particular factor.

10 Of course, we don't have a mitigation situation

11 here, because there was a trial and there was a finding

12 of guilty to some of the counts. The Defence of the

13 accused during the trial is well-known to you. I can't

14 comment upon that. The co-operation with the Tribunal,

15 which I think really may have, although again I may not

16 be 100 per cent correct -- but it seems to have played a

17 large part in what the recommendation was by the

18 Prosecution in that sentencing and the way that it was

19 presented to you yesterday. I think that ties into

20 another part of what I talked about before the break,

21 but didn't really elaborate. I mentioned, and these are

22 my words, your Honours, I mentioned sort of the mission

23 of the Tribunal, which included the return of the rule

24 of law in Bosnia, the restoration of true peace and

25 reconciliation, and I think they talk about a collective

1 reconciliation in another part of it. So I think the

2 message that Mr. Niemann would like to send out is that

3 if you co-operate, you are going to be rewarded. Whether

4 that goes along with the mission of the Tribunal is, of

5 course, for you to determine.

6 However, how does Mr. Tadic fit into this bigger

7 concept? In other words, Mr. Tadic, who is going to be

8 sentenced here, and there will be, of course, a message

9 that will come out of that sentence. This case again

10 has a very high profile, whether it is in Europe -- it

11 also has a high profile in America and other parts of

12 the world. The message has been so far such that

13 actually Mr. Tadic, and his case is well-known

14 everywhere. It goes hand in hand with my colleague's

15 comments that Mr. Tadic will never be able to sink into

16 oblivion or disappear no matter what you do in a week or

17 so in regard to a sentence. He will have to live with

18 that. I submit to you that you may sentence him to a

19 natural jail cell some place in the world, but with that

20 notoriety he has a sort of a portable jail cell of his

21 own that he is going to be taking with him wherever he

22 goes because of the profile of this case. The fact that

23 he is the first one and the fact that he was the one

24 that got the ball rolling -- it sounds like a very trite

25 term, but he was the one who was involved in being

1 prosecuted by the Tribunal and whatever the message is.

2 Now the mission of the Tribunal, and this goes

3 again, and I am not sure if I will be able to answer

4 this question. Judge McDonald you had -- it is only

5 maybe my perception that you had some thoughts, and

6 perhaps there was some -- I won't call it a struggle but

7 an intellectual concern of whether sentencing Tadic and

8 Tadic only means only something to Tadic and for Tadic.

9 What about the other individuals? What about the

10 leaders who were there in Bosnia in the small area, in

11 the Opstina, in Banja Luka and then upward from that,

12 and I am appreciating the struggle as I am perceiving

13 you having -- maybe you don't, but that's what I am

14 perceiving. What then is the message? If Tadic gets X

15 years, does that mean that all of these folks who were

16 there who have either sealed or unsealed indictments

17 filed, who have been wanted, and thousands of others,

18 how are they going to take that? Will that lead to

19 reconciliation? Will some part of that society be happy

20 -- that's maybe a bad word -- satisfied if there's

21 going to be -- there's a word, you know that we use in

22 America too much I think, and that's whether there's

23 going to be a closure for some of the people who were

24 involved in these awful things. I'm not here, by the

25 way, to in any way give you information or ideas about

1 what I think about the conflict in Bosnia or give you

2 any specific hard information. My gosh! You have sat

3 here and listened to the evidence. You read. You know

4 what goes on. I guess the question is going to be:

5 what will the message be?

6 It's my feeling that on the basis of what this

7 particular Chamber has made in terms of finding of guilt

8 that Mr. Tadic deserves some sentence. Mr. Niemann said

9 this is not the most serious. Mr. Livingston has a

10 certain idea. I have listened to what the Yugoslav law

11 was. We all have some ideas that in some of the

12 countries where he could end up there are programmes,

13 processes of parole, of remission, of pardon, of

14 whatever other thing that possibly he can take advantage

15 of. However, as I have looked at what he has been found

16 guilty of and what he has spent in custody at this

17 point, which is four and a half -- three and a half

18 years, 41 plus months, we have to take a look at that.

19 We also have to realise, I think, that the time in

20 custody has been a time where he was awaiting trial. If

21 there is any rehabilitative aspect to anything that is

22 in the sentencing structure or scheme here, that

23 certainly has not happened. From my vantage point he is

24 a relatively young man. I don't know whether

25 rehabilitation should be just thrown out the window and

1 not considered in this case. He has done what we again

2 in the United States call "hard time" at this point. He

3 has been really warehoused here awaiting trial. If you

4 look at some of the parole schemes, remissions, pardons

5 in some of the other countries, his three and a half

6 years spent in custody here may amount to five, six,

7 seven or as much as ten years in some of the systems.

8 It depends whether it is the British system, the Dutch

9 system, the American system. So that's the equivalent

10 that he has already spent. I am impressed with his

11 background and the way he has handled himself. I am

12 concerned, as Mr. Livingston is, that he has nowhere to

13 go. I am quite concerned also that there is an

14 additional punishment that I think may not have been

15 mentioned, the fact that he was taken away from his

16 family, from his daughter. I am not going to recount

17 the testimony of his daughter. I think it was rather

18 touching and you watched it. I think that's another

19 type of punishment.

20 I would ask the court to consider as punishment

21 the time that Mr. Tadic has served so far here in

22 Holland, and send him home wherever he can find a home,

23 at least back to his family on July 14th. Thank you

24 very much.

25 JUDGE McDONALD: Thank you, Mr. Kostic. Mr. Vujin?

1 MR. VUJIN: Your Honour, honourable Judges, honourable

2 counsel, when the Defence begins the third part of its

3 statement within the unified defence of our client, we

4 wish to stress that it's very difficult for us at this

5 point in time to discuss the circumstances, because the

6 Defence has already given notice on its appeal on

7 judgement and guilt. However, fully respecting the rules

8 of this Tribunal we have to present our views on all the

9 circumstances which are relevant for the penalty.

10 Mr. Niemann, as the Prosecutor, the chief

11 Prosecutor in this case, yesterday in addition to his

12 written submission earlier on, which contains certain

13 views, elaborated on that submission orally, adding a

14 few more points, and if I understood him well, the

15 position of the Prosecutor is that Mr. Tadic is not a

16 small fish, to use their term; that he had an important

17 part on the attack on Kozarac; that he played an active

18 part in the expulsion of Muslims and Croats in Prijedor

19 municipality, that after the completion of ethnic

20 cleansing he became a political leader in Kozarac; that

21 he was President of the Kozarac SDS; that he

22 participated after taking part in the conflict in

23 Kozarac; that his position became higher; that he did

24 all this out of greed, hatred; that he was two-faced;

25 that he was motivated by the idea of a Greater Serbia;

1 that he was independent directly responsible for the

2 destruction of people in Prijedor; that Mr. Tadic was not

3 under any kind of threat so as to be forced to do all of

4 this; and that he did all this, although he was an

5 adult, 36, over 36 at the time; that he had a privileged

6 status; that he was prompted by greed for violence and

7 power; that the aim was the more there would be for the

8 Serbs, the more there would be for Tadic; and that there

9 is not a single mitigating circumstance, because he did

10 not co-operate with the court; that he had a privileged

11 and safe position in the traffic police and later in the

12 local community; that he enjoyed certain rights with

13 respect to the distribution of property; and that he had

14 access to humanitarian aid.

15 All these points are mentioned by Mr. Niemann in

16 order to show to what extent our client was in a

17 position to do precisely what you found him guilty of

18 under Count 1.

19 I must put the following question: on the basis

20 of which evidence presented to this court does

21 Mr. Niemann claim that our client was greedy, that he was

22 motivated by hatred, that he was two-faced, that he was

23 inspired by the idea of a Greater Serbia, and that he

24 was indirectly responsible for the destruction of all

25 people in Prijedor?

1 I have carefully read the transcript from the

2 hearings and I never came across a single piece of

3 evidence in support of such points and allegations.

4 I don't know what Mr. Niemann had in mind when he speaks

5 of greed, because he adds the craving for power.

6 Mr. Tadic never in his life represented power. Mr. Tadic

7 never in his life was greedy for property. These are

8 two kinds of greed that I must say our position about

9 this. Mr. Tadic was never inspired by the idea of a

10 Greater Serbia, because the idea of a Greater Serbia is

11 used in this trial, too, and I think that that is the

12 business of another branch of science rather than this

13 Tribunal to deal with.

14 However, in order to discuss this idea and see

15 whether Tadic was inspired by this idea, we must go back

16 to the Declaration on the Proclamation of the Republic

17 of the Serbian People of Bosnia-Herzegovina, dated 27th

18 January 1992, which was issued after the referendum

19 organised on 9th and 10th November 1991. Let us begin

20 with the referendum and the role of Mr. Dusko Tadic in

21 organising that referendum, as reference is being made

22 to this in this Trial Chamber repeatedly.

23 The referendum was prepared and organised not for

24 the Serbian people, not exclusively for the Serbs to

25 express their view. It was organised for the people who

1 vote in the referendum to declare whether they wished to

2 remain within a unified Bosnia-Herzegovina, within a

3 unified Yugoslavia, which at that time was already being

4 undermined. That is why there were two ballots, because

5 the point of departure was the right to self-determination,

6 and if the position of a part of the Serbs were not

7 accepted, that is that they should remain within a

8 unified Bosnia-Herzegovina as a federal unit of

9 Yugoslavia, then other decisions would follow, and the

10 results of that referendum led to the declaration which

11 in its substantive articles contains the following:

12 "The Republic of the Serbian people of

13 Bosnia-Herzegovina is proclaimed. The Republic is a

14 component part of The Federal Republic of Yugoslavia as

15 a Federal Unit".

16 There is no Serbia; there is mention of Yugoslavia

17 only:

18 "That the territorial delineation with the

19 political communities of other peoples of

20 Bosnia-Herzegovina as well as the settlement of other

21 rights and obligations will be done by peaceful means

22 and by agreement, fully respecting the ethnic,

23 historical, legal, cultural, economic, geographic,

24 communication and other important criteria, and fully

25 observing the principles and rules of international

1 law. The constitution of the Republic will guarantee

2 full equality of peoples and citizens before the law

3 and against all forms of discrimination. The seat of

4 the republic will be in Sarajevo".

5 Those are some of the most important Articles of

6 that declaration on the basis of which this Republic was

7 proclaimed, and on the basis of which a constitution was

8 passed in March of the same year, which reflected and

9 mirrored this: equality of citizens and prohibition of

10 any kind of discrimination. This position of the

11 Serbian people, which was proclaimed and published in

12 the Official Gazette, one cannot find anywhere the idea

13 of a Greater Serbia, the idea on separation along ethnic

14 lines. Nowhere can we find evidence of any kind of

15 discrimination.

16 Therefore, Dusko Tadic himself agreeing to

17 participate in this kind of statement of views, working

18 at the referendum as a member of a committee, that is

19 the lowest level body which participated in the

20 organisation of the referendum, because there is a main

21 commission, then a regional commission, and then there

22 is the voting commission. At that referendum, which was

23 carried out under the instructions of the main

24 commission, the election committee's task was merely to

25 conduct the voting at the polling station and to ensure

1 the correctness of the polling procedure. If in Kozarac

2 and for that part of Kozarac was this polling station

3 organised, that is the old part of the city, which was

4 covered by the voting commission of which Mr. Tadic was

5 the President, Mr. Tadic's role was no other than to

6 technically implement something that was permitted at

7 the time by the constitution.

8 May I remind you at the time the constitution of

9 the previous Bosnia-Herzegovina was still in force,

10 which guaranteed the right to vote and to be elected to

11 everyone. Therefore this was a simple matter of

12 technical organisation and implementation of the

13 decision of superiors. Mr. Tadic was the lowest level in

14 this hierarchy. So to speak of his active role in

15 organising the referendum is absolutely out of the

16 question.

17 So much about the referendum itself, the idea that

18 existed and which, as we have tried to show, has nothing

19 in common with the alleged inspiration, by the idea of

20 Greater Serbia attributed to Dusko Tadic. All the

21 witnesses that we have presented, as well as others,

22 especially witnesses with whom Mr. Tadic had good

23 relations, and they were of Muslim ethnicity or

24 nationality -- let me use that term, although that is

25 not, of course, a nationality; it is a religious

1 affiliation, but let us avoid discussions of that kind

2 -- such as Kemal Susic, Kahrimanovic and others, show

3 that Mr. Tadic was never before, before all these

4 conflicts involved in politics. Borka Rakic speaks of

5 this on page 4453 of the transcript. She says she never

6 discussed politics with him. Smoljic also speaks of

7 this, who as a refugee went there and said Tadic never

8 spoke of politics with him. Then there is the testimony

9 of Mira Tadic, Ljubomir Tadic, the wife and brother of

10 the accused, who know him well, who are very familiar

11 with his activities.

12 Therefore, up to the point in time when, because

13 of some reason which I believe we cannot go into now at

14 this stage, tension occurred between the members of the

15 various ethnic groups, and when conflict appeared to be

16 in the offing between national groups, but Muslims had

17 already started to arm themselves, the citizens' forum

18 was organised that many witnesses referred to, and

19 I think that there's no doubt that Dusko Tadic

20 participated in that forum as a Serb, as one of the few

21 people in that delegation, one of the few Serbs, who

22 went to Prijedor to seek to resolve the tension by

23 peaceful means.

24 Is the Prosecutor correct when he says that

25 Mr. Tadic was two-faced? I think he is not, this

1 evidence points to the opposite. Mr. Tadic had correct

2 and good relations with Muslims, with his neighbours.

3 He taught their children karate. His bar was visited

4 by Muslims as by members of all other ethnic groups, and

5 as you heard from the testimony these past few days from

6 all the witnesses who spoke before you, he was not

7 brought up in a nationalist spirit. His beard which he

8 wore occasionally, as Kemal Susic says on page 2177 of

9 the transcript, was customary at the time, and it was

10 not an expression of any kind of nationalism or any

11 other racial aspects of nationalism.

12 Ms. Mira Tadic confirmed the point that after the

13 conflict in Prijedor quite a number of Muslims stayed on

14 in Prijedor. That assertion was confirmed by the

15 testimony of Nashia Jakupovic on page 3157 of the

16 transcript, who confirmed what Mira Tadic was saying,

17 that Dusko Tadic assisted the Jakupovic family to obtain

18 documents, as he had helped members of our families

19 after the conflict to obtain documents, to get

20 medicines, and he even saw some off to the station. All

21 this was happening after the conflict in Kozarac, and

22 I think the Prosecutor is not correct when he says that

23 he was two-faced, that he pretended to have good

24 relations, but basically he was full of hatred, because

25 if that was so he would not have helped other people.

1 Finally, there is the decision of the crisis

2 staff, which says that the crisis staff decided to

3 oppose all attempts of forcible, of displacement of the

4 population under any kind of pressure and that it would

5 prevent any such possible attempts by all legal means.

6 Therefore, there was no idea to displace anyone by

7 force: you cannot observe the events in Prijedor in

8 isolation when examining in whole issue. You will have

9 to link this to what was happening in Jajca, for

10 instance, in Zenica, what was happening in Tuzla. There

11 you had an identical situation in the opposite sense.

12 Columns of Serbs were moving out of those towns, leaving

13 all their property behind, not because they were

14 expelled, but because the balance of forces was such

15 that they had to move out so that during the conflict

16 grave consequences would not be suffered by them and

17 members of their families. It is in this light that we

18 have to observe the events in the surroundings of

19 Prijedor, and then it is quite easy to establish what

20 Tadic's role was in all this. I submit that Tadic had

21 no role in this that could be interpreted as him having

22 organised deportations and the displacement of Muslims

23 by force.

24 What did Tadic gain during the war for one to be

25 able to say that he was greedy? He didn't get

1 anything. His family was left without a breadwinner.

2 His family was a refugee family. They had the status of

3 refugees in Banja Luka. To this day they are living in

4 a rented apartment. They have no apartment of their

5 own, because they were evicted from their apartment.

6 What is it, what evidence do we have to justify such an

7 allegation of the Prosecution? My submission is that

8 there is not a single piece of evidence to corroborate

9 this.

10 What I was saying a moment ago regarding the

11 relations between Mr. Tadic and the Muslims after the

12 conflict, when he helped them and gave them medicine and

13 helped them to obtain documents, this gives me the right

14 to claim that on the basis of what we have said from the

15 testimony on the relationships he had with his Muslim

16 neighbours, on his upbringing, that there wasn't the

17 slightest trace of hatred for anyone because he may be a

18 Croat or a Muslim.

19 Anyway, you have been able to hear the testimony

20 of a witness who described what their friendship was

21 like, though she was a Croat. A great deal has been

22 said about Mr. Tadic as a man, a good man and a good

23 neighbour, and especially I wish to underline once again

24 the statement of Kemal Susic, his teacher from his fifth

25 year of elementary school, according to his testimony,

1 who followed his growing up and who said that throughout

2 he was a good person. Therefore, against this backdrop

3 and this kind of family circumstances no hatred could

4 have been born in Mr. Tadic, and further on no

5 justification to allege that he was two-faced, because I

6 go back to what I have said, that his friendly feelings,

7 his good relations with the Muslims, were evidenced by

8 his behaviour after the conflict.

9 Then there is the question of indirect

10 responsibility for destruction of people and for

11 persecution under Count 1. I think there is a great

12 danger lurking here. The danger that we might develop a

13 concept that is not in accordance with the rules of this

14 Tribunal. I think that we must establish individual

15 responsibility with the utmost care, as was done for all

16 the other counts of the indictment. In this way we have

17 put in one count something for which we do not have

18 evidence. You have found evidence. We must accept your

19 decision and your determination, of course. I'm talking

20 now about the degree of criminal responsibility

21 specifically in relation to Dusko Tadic's role in the

22 broader picture.

23 I have been speaking about his political activity

24 so far, saying that it was reduced to a minimum, to a

25 technical role of implementing something that others had

1 decided. This is evidenced through his activities in

2 the Red Cross and his activities in the local commune.

3 It should be noted, and I think that you realise

4 this, after Professor Aleksic's testimony, that the

5 local commune, which is at this point not even a

6 constitutional category, is simply a small part of a

7 municipality which has the right to self-organise

8 itself. The citizens get together and say: "We need a

9 department store or a supermarket because the other one

10 we have is too far, 4 kms away". So they get together

11 and decide that at an assembly meeting. All they can do

12 is submit a request to the municipality and then it is

13 up to the municipality to decide whether it has the

14 funds, whether it will be done, whether this fits into

15 the town plan and many other things like that.

16 Therefore, the local commune has no right of

17 decision-making, and will be the secretary of that local

18 commune, who is not even an official organ, has

19 absolutely no rights. He is simply a person who is

20 employed on the basis of a competition just like any

21 other staff member in a bank. Therefore, his role as

22 secretary of the local commune, which according to the

23 position of the Prosecution gave him some kind of a

24 privileged position is unfounded. There is no authority

25 that he acquired. There is nothing.

1 The work of Mr. Tadic as a reserve policeman in the

2 traffic police is not evidence of any privileged

3 position, because you had hundreds of other traffic

4 policemen at the same time, who certainly did not have

5 any privileged position. Simply there was the need to

6 organise this service, to check the traffic in an

7 abnormal situation that the country was in at the time.

8 Therefore, there is no privileged position of Tadic.

9 Would anyone who was privileged by the authorities be

10 evicted from his apartment together with his family? If

11 Tadic had been a person of importance, he would have

12 been given a house of his own or an apartment in the

13 best possible place rather than being evicted and his

14 apartment being given to somebody else, according to

15 some kind of rules.

16 The Prosecutor says that there are no mitigating

17 circumstances, because he did not co-operate with the

18 court, and he had access to humanitarian aid and control

19 over the distribution of property. I must tell you that

20 Mr. Dusko Tadic, as the secretary of the local commune,

21 as a Red Cross activist, did not play any role in

22 deciding about who would settle in Kozarac. He was the

23 person who for the people who had come back or who were

24 refugees from other areas and came to settle there, he

25 just distributed the relief that he received from the

1 Red Cross.

2 We have tendered as evidence a document about

3 this, which we didn't manage to translate in full, but

4 I hope it is quite clear from that document that it's a

5 list on the basis of which humanitarian relief was

6 distributed, goods, food, detergents and other products,

7 and which was delivered on the basis of an invoice that

8 has been submitted. When the truck arrives, then Tadic

9 had the role to distribute it, together with the other

10 members of the commission, not alone.

11 JUDGE STEPHEN: I wonder if I can ask you a question on

12 that? To the limited extent to which I was able,

13 I looked at the first names of the people to whom food

14 was distributed. Would I be right in thinking that none

15 of them were Muslim names?

16 MR. VUJIN: I think that that is true, your Honour, but

17 there are Croat names. There are Croat names. That is

18 one of the lists. Unfortunately the lists no longer

19 exist. We managed to find this particular list. You

20 saw the testimony that we gave you in written form by

21 Mr. Cavic, who said that precisely because of this

22 distribution of humanitarian aid and food that people

23 objected, because Tadic had given aid to Muslims, too,

24 then the people had complained why he hadn't been taken

25 to the front. Have a look at that statement. That's

1 what it says. So a witness spoke of this, too, that

2 there was an elderly woman and a few younger people,

3 Muslims, a few younger men who received assistance, aid

4 like all others. May I continue?

5 JUDGE STEPHEN: Yes, please do.

6 MR. VUJIN: Thank you. Therefore, in that part also he did

7 not play a role which was over-important. These are

8 circumstances which will assist you, in my deep

9 conviction, to put Dusko Tadic within a realistic

10 framework of his obligations and his rights which he

11 practically didn't have, except for the right to carry

12 out his duties in line with the statute of the

13 municipality, the statute of the local community, etc.

14 So his work was found by the regulations and decisions

15 of other organs. This is very important, in my opinion,

16 because the Prosecutor keeps insisting on big fish,

17 small fish, the level of criminal liability, etc.

18 I shall also recall the dates when the decisions

19 were passed to restart the local community, when he was

20 appointed secretary. This was August 1992 and it was

21 constituted on 15th August, and the secretary was

22 appointed on 9th November. November 1992, so when the

23 fighting broke out, when we are talking about May and

24 April and the preceding months, when the situation was

25 becoming complicated, Dusko Tadic was not even that. He

1 wasn't the secretary of the local commune. He wasn't an

2 activist, etc.

3 May I also recall that before the conflict broke

4 out, Dusko Tadic was not the President of the SDS for

5 Kozarac. At that time when these events were taking

6 place Kozarac didn't even have an SDS organisation.

7 According to the statute of the SDS, 150 members were

8 needed in order to establish an organisation. At that

9 time in Kozarac there weren't 150 members, so an

10 organisation could not be established, a local

11 organisation within the local community. Dusko Tadic at

12 that point in time, because he was outside the

13 organisation, and he only had a member card of the SDS,

14 did not take part in the work of any organisation of the

15 SDS, nor could he present certain views, positions,

16 ideas or accept them.

17 This happened only later, when he was indeed

18 appointed secretary, but you will note in the evidence

19 you have in this respect that there is one person who is

20 missing for this committee, because they were supposed

21 to elect 15 members and they only had 14, but the

22 activity of the SDS and the activities of the local

23 community, according to all the evidence tendered, the

24 testimonies of the witnesses and the written

25 testimonies, boils down to bringing life back to

1 Kozarac. The health centre was rebuilt and you managed

2 to see that it started functioning again through the

3 great efforts of Mr. Tadic, and a doctor came back there

4 to work for a month or two or three under very difficult

5 conditions, because all the medical equipment was taken

6 back to the Opstina, and Ms. Tadic also testified that,

7 because she is employed by the health centre, and she

8 knew what happened to this equipment. Houses were

9 repaired. Life was brought back to the village. That

10 is where this active role is. Even now, when you walk

11 through that area, everybody will tell you that Dusko

12 Tadic played a major role in this respect, and everybody

13 is surprised at what has happened to him.

14 These are some of the reasons that are presented

15 by the Defence in response to the allegations made by

16 the Prosecutor in this connection.

17 I am sorry. I will take a bit longer than our

18 usual time, and you said that that would be all right,

19 but it won't be very long.

20 Finally, I wish to speak about what has been part

21 -- is there any problem?

22 JUDGE McDONALD: We may or may not. Let us see how much

23 longer you have. We may adjourn at 5.30. You may

24 proceed, Mr. Vujin.

25 MR. VUJIN: Your Honour, I think that I will be completed

1 after 20 minutes at a maximum, because I'm talking about

2 my last point now, the application of law.

3 I wish to draw your attention to what we tried to

4 clarify yesterday with the Professor, too, which is

5 relevant to the rules and procedure of this court,

6 namely Rule 24 and Rule 101. Both rules say that

7 sentence will be imposed in view of the gravity of the

8 offence and also in view of the court practice of the

9 former Yugoslavia. I'm afraid that the rules concerned

10 are quite incomplete, and there will be quite a few

11 problems involved, because there are going to be

12 different interpretations. Rule C under Rule 101 speaks

13 of whether multiple sentences shall be served

14 consecutively or concurrently. So since my colleagues

15 spoke of this, I shall make no further reference to it,

16 but if we take into account customary practice of

17 Yugoslav courts, then the provisions of paragraph C

18 would not be applicable, although in certain cases this

19 may serve to the benefit of the convicted person. What

20 am I trying to say? I'm trying to say that according to

21 our law, Yugoslav law, and that is how I interpret this

22 provision, you are not bound by Yugoslav law, but you

23 are bound by the practice of Yugoslav courts, and the

24 practice of Yugoslav courts is derived from Yugoslav

25 laws, and practice cannot be different from what the law

1 says in terms of the practical implementation of the

2 laws.

3 Why am I saying this? Because you have found

4 Mr. Dusko Tadic guilty on certain counts, having

5 concluded that he committed crimes against humanity and

6 violation of laws and customs of war. These are two

7 incriminations which were committed on certain counts

8 through the same actions. According to our legislation

9 this is impossible, because the graver offence subsumes

10 the lesser offence. It is possible for offences to be

11 committed by one single action and to have two different

12 qualifications very, very rarely in terms of a very,

13 very specifically denominated way in which a crime was

14 committed. When speaking of crimes against humanity,

15 the list according to the statute of this Tribunal,

16 murder, rape, depredation, etc., you have contained in

17 point one of your verdict all of this, and in addition

18 to that, that on which you found Dusko Tadic guilty

19 according to the other counts. So according to our

20 criminal law it would be impossible for Dusko Tadic to

21 be found guilty for crimes against humanity and the laws

22 and customs of war.

23 Another thing I wish to draw your attention to is

24 the fact --

25 JUDGE McDONALD: May I just interrupt you a moment? It is

1 very important as you speak of the law in your country

2 you tell us what country you are talking about. If you

3 are talking about Federal law, tell us what time. Also

4 you must refer us to a particular Article of the Code.

5 Then when you speak of practice, if you have evidence of

6 the practice, that must be provided, because it's very

7 difficult for the Judges to accept just assertions of

8 counsel unless you direct us to something that we can

9 put our hands on, so to speak.

10 Now, are you saying, though, that for example, in

11 counts 5 through 11 if Mr. Tadic were found guilty for

12 committing those acts and the Trial Chamber found that

13 they constitute crimes against humanity, and found that

14 they also constitute a violation of the laws or customs

15 of war, are you saying that that finding is contrary to

16 Yugoslav law, and, if so, you need to refer me to a

17 particular article or section of the Yugoslav criminal

18 code. That's one scenario. I may misunderstand you,

19 though, because you may be saying that Count 1 only

20 charges crimes against humanity, and Mr. Livingston said

21 that if you look at it, temporarily at least it covers a

22 period through May to December and all of the acts

23 charged in the other counts for which the Trial Chamber

24 found Mr. Tadic guilty occurred during that period and

25 then that subsumes the other counts, but he was talking

1 about factually. Then you speak of it legally, but more

2 in terms of sentencing, so that you sentence for the

3 gravest offence and you would sentence for no more; if

4 you are going to sentence concurrently, then the

5 sentence imposed for the greatest, which presumably

6 would be Count 1. Those are three different scenarios.

7 I am mostly concerned with findings of guilt for

8 findings against humanity, for laws and customs of war

9 for the same crimes. May we sentence X number of years

10 for humanity and X number of years for laws and customs

11 of war in accordance with the Yugoslav code in operation

12 at that time?

13 MR. VUJIN: That is part of the problem. I said that

14 misunderstandings were involved in terms of the systems

15 involved. In Article 24 of the statute and Rule 101 it

16 doesn't say at all that you will take into account the

17 rules -- rather the practice of courts of other

18 countries, but precisely the court practice of the

19 former Yugoslavia. To clarify a certain situation

20 related to your question, first of all I am speaking

21 about the application of the Yugoslav criminal law, the

22 general section which was applicable when the events

23 concerned were taking place. So that could be a

24 starting point for you as a court to accept these

25 provisions.

1 I draw your attention once again to something

2 I said, which was accepted by Mr. Keegan, that

3 Bosnia-Herzegovina took over the provisions of the

4 previous criminal law of Yugoslavia as their

5 provisions. I also have to draw your attention to the

6 fact that in the former Yugoslavia at that time there

7 was Federal legislation, the Federal criminal law, which

8 gave the basic provisions what a crime was, what

9 self-defence was, etc., etc., and a special part which

10 contained certain criminal offences and Chapter 16 deals

11 with those offences that were included in Yugoslav law

12 on the basis of certain international conventions and

13 that also applied to the acts that we are discussing

14 here today. In addition to the Federal Law, which was

15 applied throughout the territory of the former

16 Yugoslavia, we also had the criminal laws, codes, the

17 republics, Montenegro, Serbia, Montenegro. Special

18 criminal offences were stipulated there in respect to

19 certain crimes. Murder, fights, etc.

20 Why am I saying all of this? Because the Federal

21 Law applied to throughout Yugoslavia and all the new

22 states took over that lot even after secession,

23 Slovenia, Croatia and that also happened in the case of

24 Bosnia-Herzegovina, too. They took over this general

25 law as their own and also their own specific law from

1 before as their current law, too.

2 I also wish to draw your attention to Article 4 of

3 that law, too, that the law applied is always the softer

4 law. So until the trial, if the law is changed by the

5 time the trial is held, and if a milder sentence is

6 envisaged by the new law, the new law will always be

7 applied, not the law that was applied the time the act

8 was committed. This is a general provision which is

9 included in the criminal code which was taken over by

10 Bosnia-Herzegovina and that is why I draw your attention

11 to that again, because, as we said in connection with

12 the death penalty, too -- let us not discuss the death

13 penalty at length. I believe it does not exist, because

14 we received papers, documents from Bosnia-Herzegovina.

15 It does not exist there, so the maximum sentence is 15

16 years, so we take as a point of departure 15 years.

17 I have to draw your attention to another legal

18 institute which was not regulated by law but has been

19 confirmed and accepted in practice. That is the

20 so-called construction of extended criminal act. Some

21 acts, like those from this chapter and the statute from

22 the Tribunal by their very nature and by our criminal

23 theory, are extended crimes. What does that mean? As

24 you have said in Count 1, Dusko Tadic is responsible for

25 rape, etc., etc., and you did not find him personally

1 responsible for a certain rape, etc., etc. So you took

2 all of that and put it into Count 1, but if you put all

3 of that into Count 1, then all the rest, people were

4 taken out of a column, beaten up, etc., according to our

5 legislation would fall under this one count, because a

6 crime against humanity can only be carried out through

7 the commission of one act, regardless of whether you

8 said now, as you established in Count 1, for example,

9 for what he was responsible for May to July and then an

10 interruption, and then from October to December. There

11 cannot be two acts. All of it is one act.

12 To make it clearer through an example which will

13 familiarise you with this institute, for example, if a

14 thief committed five thefts in a certain neighbourhood

15 during one night or five nights and he robbed one house

16 or five houses, these are not going to be five thefts

17 according to our law but only one theft. Perhaps the

18 very number concerned could only influence the

19 sentencing, but I underline that this is practice which

20 is applied not only in our case but also in Bosnia and

21 Croatia and everywhere. There are many such court

22 decisions. The Defence thought that you might have been

23 familiar with this. I don't have this available at this

24 point in time, not right now, but perhaps I can find

25 these decisions for you and have them provided to you

1 tomorrow, but that is important, that all these acts

2 that are committed in one period of time can only be

3 considered to be one act.

4 JUDGE McDONALD: I think that question has been answered or

5 perhaps I do not understand the answer. Let me just say

6 this. You have offered an expert witness, the

7 Professor. He has testified about the practices. The

8 Prosecution has offered written documents, which the

9 Professor indicated, your witness, were dated, because

10 they ceased as of 1988, as I recall. That is the type

11 of evidence that we need. The representations of

12 counsel are -- we accept them as representations of

13 counsel, and that's why we have invited the parties to

14 submit information regarding the sentencing practices in

15 the former Yugoslavia. I don't know that my question is

16 answered yet. I asked the Professor, though, yesterday,

17 and I thought that his answer was that well, he couldn't

18 really think of a crime like that in the Federal

19 Republic of Yugoslavia where there were different

20 elements for two different crimes, and both crimes were

21 charged as a result of one set of facts. He couldn't

22 think of that, but I thought he was saying to me that if

23 those were different elements, then that would be

24 acceptable, but maybe I misunderstood him. Maybe it

25 wasn't that clear. That is a problem that we have.

1 It's now 5.30, I think we will have to adjourn. I do

2 want, though, my question answered regarding nullem

3 crimen ... lege, and I guess you will. That is what is

4 the effect of what appears to be the authority under the

5 rules to sentence for a life term, yet there not being a

6 life term available in any of the States of the former

7 Yugoslavia at the time of the occurrence of the acts.

8 Now you have just, though, referred to a principle

9 of the law changes --

10 MR. VUJIN: Life imprisonment does not exist now either.

11 Milder law is applied.

12 JUDGE McDONALD: The Professor yesterday said the new law

13 will probably call for life imprisonment in light of the

14 abolishment of the death penalty and now that the death

15 penalty is abolished by the constitution, you cannot use

16 the 20 years maximum, but he spoke of differences

17 between Serbia and Montenegro, as I recall. If you can,

18 tomorrow please provide your opinion at least as to the

19 nullem crimen problem, as I see it, and the other

20 question in terms of sentencing for two crimes that have

21 different elements, but both of them are based on the

22 same offence, and what would be the practice in the

23 former Yugoslavia. If it is specifically provided in

24 the Code, the Federal Code or any of the Republics'

25 Code, we would need a citation to that. If the answer

1 is supported by practice, then we would need some

2 support for that in the form of court decisions or

3 something other than the representations of counsel.

4 I think that would help us.

5 MR. VUJIN: That is indeed --

6 JUDGE McDONALD: Excuse me. Mr. Vujin, when you are

7 provided with the transcript, if you will review the

8 questions that I have asked five minutes ago and

9 tomorrow if you could provide an answer, I will

10 appreciate it, and also input from the Prosecution as

11 well. You will have an opportunity to respond, because

12 it's very important. As I indicated, Mr. Tadic, if he

13 wishes, will have an opportunity to speak on his behalf,

14 if he wishes, and that would be tomorrow either before

15 or after Dr Nedopil completes his offering.

16 You will complete your submissions but we do need

17 some input with respect to these questions, and we will

18 hear from the Prosecution as well as to these

19 questions. We will then hear from Dr Nedopil or perhaps

20 Mr. Tadic, however you wish to handle it, and that will

21 then complete our pre-sentencing hearing tomorrow. We

22 will not be able to begin, though, until 11.30, because

23 there is be an initial appearance. So we will adjourn

24 until tomorrow at 11.30.

25 (5.35 pm)

1 (Hearing adjourned until 11.30 tomorrow morning)

2 --ooOoo--

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